EXECUTION COPY
ASSET PURCHASE AGREEMENT
between
DIBRELL BROTHERS ZIMBABWE (PRIVATE) LIMITED
and
TABEX (PRIVATE) LIMITED
As of February 14, 1997
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TABLE OF CONTENTS
ARTICLE I ASSET PURCHASE AND SALE . . . . . . . . . . . . . . . . 1
Section 1.1. Agreement to Sell. . . . . . . . . . 1
Section 1.2. Included Assets. . . . . . . . . . . 1
Section 1.3. The Purchase Price . . . . . . . . . 2
Section 1.4. Closing. . . . . . . . . . . . . . . 2
Section 1.5. Tabex Xxxxxx Option. . . . . . . . . 2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . 3
Section 2.1. Corporate Existence of Seller . . . 3
Section 2.2. Authority. . . . . . . . . . . . . . 3
Section 2.3. No Conflicts. . . . . . . . . . . . 3
Section 2.4. Consents . . . . . . . . . . . . . . 4
Section 2.5. Taxes. . . . . . . . . . . . . . . . 4
Section 2.6. Legal Proceedings. . . . . . . . . . 4
Section 2.7. Employee Benefit Plans . . . . . . . 4
Section 2.8. Brokers. . . . . . . . . . . . . . . 5
Section 2.9. Real Property. . . . . . . . . . . . 5
Section 2.10. Ownership of Assets
and Related Matters. . . . . . . . . 5
Section 2.11. Environmental Matters. . . . . . . . 6
Section 2.12. Labor Matters. . . . . . . . . . . . 6
Section 2.13. Accuracy of Information. . . . . . . 7
Section 2.14. Employees. . . . . . . . . . . . . . 7
Section 2.15. Contracts. . . . . . . . . . . . . . 7
Section 2.16. Insolvency Act . . . . . . . . . . . 7
Section 2.17. No Other Representations . . . . . . 7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER . . . . . 8
Section 3.1. Organization . . . . . . . . . . . . 8
Section 3.2. Authorization. . . . . . . . . . . . 8
Section 3.3. No Conflicts. . . . . . . . . . . . 8
Section 3.4. Governmental Approvals and Filings . 9
Section 3.5. Legal Proceedings. . . . . . . . . . 9
Section 3.6. Inspection By Purchaser. . . . . . . 9
Section 3.7. Brokers. . . . . . . . . . . . . . . 9
Section 3.8. Financing. . . . . . . . . . . . . . 9
Section 3.9. Tobacco Buyer's Licenses . . . . . . 9
Section 3.10. Collective Bargaining Agreement. . . 9
ARTICLE IV COVENANTS OF SELLER. . . . . . . . . . . . . . . . . . 10
Section 4.1. Regulatory and Other Approvals . . . 10
Section 4.2. Investigation by Purchaser . . . . . 10
Section 4.3. No Solicitations . . . . . . . . . . 10
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Section 4.4. Conduct of Business. . . . . . . . . 11
Section 4.5. Fulfillment of Conditions. . . . . . 11
Section 4.6. Employees. . . . . . . . . . . . . . 11
Section 4.7. Tobacco Buyer's Licenses . . . . . . 11
Section 4.8. Insurance. . . . . . . . . . . . . . 12
ARTICLE V COVENANTS OF PURCHASER. . . . . . . . . . . . . . . . . 12
Section 5.1. Regulatory and Other Approvals . . . 12
Section 5.2. Employees. . . . . . . . . . . . . . 12
Section 5.3. Payment of Fees and Expenses . . . . 13
Section 5.4. Fulfillment of Conditions. . . . . . 13
ARTICLE VI CONDITIONS TO OBLIGATIONS OF PURCHASER . . . . . . . . 13
Section 6.1. Representations and Warranties . . . 13
Section 6.2. Performance. . . . . . . . . . . . . 13
Section 6.3. Officers' Certificates . . . . . . . 13
Section 6.4. Orders and Laws. . . . . . . . . . . 14
Section 6.5. Regulatory Consents and Approvals. . 14
Section 6.6. Third Party Consents . . . . . . . . 14
Section 6.7. Opinion of Counsel . . . . . . . . . 14
Section 6.8. Settlement of Accounts . . . . . . . 14
ARTICLE VII CONDITIONS TO OBLIGATIONS OF SELLER . . . . . . . . . 14
Section 7.1. Representations and Warranties . . . 15
Section 7.2. Performance. . . . . . . . . . . . . 15
Section 7.3. Officers' Certificates . . . . . . . 15
Section 7.4. Orders and Laws. . . . . . . . . . . 15
Section 7.5. Regulatory Consents and Approvals. . 15
Section 7.6. Third Party Consents . . . . . . . . 15
Section 7.7. Opinion of Counsel . . . . . . . . . 15
ARTICLE VIII TERMINATION. . . . . . . . . . . . . . . . . . . . . 15
Section 8.1. Termination. . . . . . . . . . . . . 15
Section 8.2. Effect of Termination. . . . . . . . 16
ARTICLE IX MISCELLANEOS. . . . . . . . . . . . . . . . . . . . . .17
Section 9.1. Notices. . . . . . . . . . . . . . . 17
Section 9.2. Entire Agreement. . . . . . . . . . 18
Section 9.3. Expenses . . . . . . . . . . . . . . 18
Section 9.4. Public Announcements . . . . . . . . 18
Section 9.5. Confidentiality. . . . . . . . . . . 19
Section 9.6. Further Assurances;
Post-Closing Cooperation. . . . . . 19
Section 9.7. Waiver . . . . . . . . . . . . . . . 20
Section 9.8. Amendment. . . . . . . . . . . . . . 20
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Section 9.9. No Third Party Beneficiary . . . . . 20
Section 9.10. No Cession or Assignment;
Binding Effect . . . . . . . . . . . 20
Section 9.11. Headings . . . . . . . . . . . . . . 20
Section 9.12. Invalid Provisions . . . . . . . . . 20
Section 9.13. Governing Law. . . . . . . . . . . . 21
Section 9.14. Counterparts . . . . . . . . . . . . 21
Section 9.15. Survival of Representations
or Warranties. . . . . . . . . . . . 21
Section 9.16. Specific Performance . . . . . . . . 21
ARTICLE X INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 22
Section 10.1. Indemnification. . . . . . . . . . . 22
Section 10.2. Method of Asserting Claims . . . . . 23
Section 10.3. Method of Calculating Losses . . . . 25
Section 10.4. Exclusivity. . . . . . . . . . . . . 25
ARTICLE XI DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 25
Section 11.1. Definitions . . . . . . . . . . . . 25
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT dated as of February 14,
1997 (the "Agreement"), is made and entered into by and between Dibrell
Brothers Zimbabwe (Private) Limited, a Zimbabwe company ("Purchaser"),
and Tabex (Private) Limited, a Zimbabwe company ("Seller");
W I T N E S S E T H:
WHEREAS, Seller is engaged in the business of purchasing
and processing leaf tobacco in Zimbabwe and selling processed tobacco and
other consumer tobacco products (the "Business");
WHEREAS, Seller and Purchaser desire to enter into this
Agreement pursuant to which Seller proposes to sell to Purchaser and
Purchaser proposes to purchase from Seller certain assets related to the
Business and Purchaser proposes to assume certain of the liabilities of the
Seller related to the Business.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
ASSET PURCHASE AND SALE
Section 1.1. Agreement to Sell. At the Closing (as
hereinafter defined) and except as otherwise specifically provided in
this Article I, Seller shall grant, sell, convey, cede, assign, transfer
and deliver to Purchaser, upon and subject to the terms and conditions of
this Agreement, all right, title and interest of Seller in and to the
Included Assets (as hereinafter defined) as of the Closing Date (as
hereinafter defined), free and clear of all Liens (as hereinafter defined)
of any nature whatsoever except Permitted Liens (as hereinafter defined)
and Assumed Liabilities (as hereinafter defined).
Section 1.2. Included Assets. The Included Assets
shall comprise the following assets, properties and rights of Seller as of
the Closing Date (collectively referred to as "Included Assets"):
(a) All real property, machinery, equipment,
business machines, vehicles, furniture, fixtures,
leasehold and building improvements and other tangible
property of Seller listed on Schedule 1.2(a) hereto;
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(b) All right, title and interest of Seller in
the contracts, agreements, licenses and other
instruments listed on Schedule 1.2(b) hereto;
(c) All of Seller's right, title and interest
in and to Tabex Xxxxxxx Processors (Private) Limited
("TDP");
(d) All Books and Records;
(e) All warranties and other contractual
rights related to the Included Assets;
(f) All of Seller's right, title and interest
in Seller's name, "Tabex (Private) Limited" and any
derivation thereof; and
(g) All of Seller's right, title and interest
in and to the luxury boat known as "Tabacqua".
The "Immovable Property" shall mean the Included Assets listed in item 1 on
Schedule 1.2(a). The "Movable Property" shall mean the Included Assets
listed in items 2, 3 and 4 on Schedule 1.2(a) and, on Schedule 1.2(b) and
described in Sections 1.2(c) and (g) hereto. The Included Assets shall be
valued in accordance with the allocations to be mutually agreed to by the
parties and to be provided separately by Seller to Purchaser.
Section 1.3. The Purchase Price. The aggregate
purchase price for the Included Assets (the "Purchase Price") is U.S.
$12,000,000, payable in cash, in, at the option of Seller, U.S. dollars,
to the extent permitted by Law, or the Zimbabwe dollar equivalent received
by Purchaser upon conversion on the Closing Date through bankers of
Seller's choice in the manner provided in Section 1.4. Property taxes,
utilities, rents and similar items shall be prorated among the parties as
of the Closing Date and the net amount of such prorations added to, or
subtracted from, the Purchase Price.
Section 1.4. Closing. The Closing shall take
place at the offices of King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, or at such other place as Purchaser and Seller shall
mutually agree, at 10:00 A.M. local time, on the Closing Date. At the
Closing, Purchaser will pay the Purchase Price by wire transfer of
immediately available funds to such accounts as Seller may reasonably
direct by written notice delivered to Purchaser by Seller at least two (2)
Business Days before the Closing Date. Simultaneously, Seller will assign
and transfer to Purchaser good and valid title in and to the Included
Assets, subject to Sections 2.4, 6.5 and 6.6 herein, free and clear of all
Liens, except Permitted Liens, and Purchaser shall assume and agree to
pay, discharge or perform, as appropriate, all liabilities and obligations
of Seller as of the Closing Date listed on Schedule 1.4 hereto
(collectively referred to as the "Assumed Liabilities") related to the
Included Assets. At the Closing, there shall also be delivered to Seller
and Purchaser the documents, certificates and opinions to be delivered
under Articles VI and VII. Purchaser shall not assume any liabilities or
obligations of Seller, whether known or unknown, fixed or contingent,
asserted or unasserted, or otherwise, except as expressly set forth on
Schedule 1.4.
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Section 1.5. Tabex Xxxxxx Option. Seller hereby grants
to Purchaser the right to purchase on and after November 1, 1997 on ten
(10) days written notice all of Seller's right, title and interest
in and to Tabex Xxxxxx nit (Private) Limited ("Tabex Xxxxxx") with such
transfer to take place in accordance with the terms and conditions set
forth on Schedule 1.5(a) and for no consideration in addition to the
Purchase Price (the "Tabex Xxxxxx Option"). All of the fixed assets as of
October 31, 1996 and long term loans and employees, as of the date of
this Agreement, of Tabex Xxxxxx and the Tabex Xxxxxx Balance Sheet as of
November 1, 1997 are listed on Schedules 1.5(b), 1.5(c), 1.5(d) and
1.5(e) respectively. Purchaser agrees that the assets, liabilities and
employees of Tabex Xxxxxx may change in the ordinary course of business
prior to Purchaser's exercise of the Tabex Xxxxxx Option.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as
follows:
Section 2.1. Corporate Existence of Seller. Seller is
a resident corporation validly existing and in good standing under the Laws
of Zimbabwe. Seller has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including without
limitation to own, hold, sell and transfer (pursuant to this Agreement)
the Included Assets.
Section 2.2. Authority. The execution, by the
individual signing below on behalf of Seller, and the delivery by Seller
of this Agreement and the performance by Seller of its obligations
hereunder have been duly and validly authorized by the Board of Directors
of Seller and, to the extent required by Law, by the stockholders of
Seller, no other corporate action on the part of Seller or its stockholders
being necessary except for any filings that may be necessary in
terms of Section 136(1) of the Companies Act (Chap 24:03). This Agreement
has been duly and validly executed and delivered by Seller and constitutes
the legal, valid and binding obligation of Seller enforceable against
Seller in accordance with its terms.
Section 2.3. No Conflicts. The execution and delivery
by Seller of this Agreement do not, and the performance by Seller of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or
breach of any of the certificate or articles of incorporation or bylaws or
other comparable organizational and other documents governing the
operation of Seller;
(b) subject to obtaining the consents,
approvals and actions, making the filings and giving any notices disclosed
in Schedule 2.4, conflict with or result in a violation or breach of any
Law or Order applicable to Seller, or any of its Assets and Properties; or
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(c) except as disclosed in Schedule 2.3(c),
(i) conflict with or result in a violation or breach of, (ii) constitute
(with or without notice or lapse of time or both) a default under, (iii)
require Seller to obtain any consent, approval or authorization of, make
any filing with or give any notice to any Person as a result or under the
terms of, or (iv) result in the creation or imposition of any Lien upon
Seller, the Included Assets or any of Seller's Assets and Properties under,
any Contract or License to which Seller is a party or by which any of
its Assets and Properties is bound.
Section 2.4. Consents. Except as listed on Schedule
2.4, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority on the part of Seller is required in
connection with the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby.
Section 2.5. Taxes. Seller has filed all Tax Returns
that it was required to file, and has paid all Taxes shown thereon as
owing, related to or affecting any of the Included Assets. The Tax
Returns so filed are true and complete in all material respects, and there
is no amount of unpaid Tax related to or affecting any of the Included
Assets incurred by Seller or by any other Person that is or could become a
Lien on any of the Included Assets. Seller has not waived any statute of
limitation in respect of Taxes, or agreed to any extension of time with
respect to a Tax assessment or deficiency, related to or affecting any of
the Included Assets. Seller is not a party to any Tax allocation or
sharing agreement related to or affecting any of the Included Assets.
Section 2.6. Legal Proceedings. Except as disclosed on
Schedule 2.6, there are no Actions or Proceedings pending or, to the
Knowledge of Seller, threatened against, relating to or affecting any of
the Included Assets which could reasonably be expected to result in the
issuance of an Order restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions contemplated by
this Agreement.
Section 2.7. Employee Benefit Plans. Schedule 2.7
lists each Employee Benefit Plan that Seller maintains or to which Seller
contributes for any employee of Seller listed on Schedule 4.6 hereto (true
and complete copies of such Plans, together with all amendments and
supplements thereto, have been delivered to Purchaser prior to the
execution of this Agreement). Each such Employee Benefit Plan (and each
related trust, insurance contract or fund) complies in form and in
operation in all respects with the applicable requirements of the Laws of
the jurisdiction in which the Employee Benefit Plan is in effect. All
employer contributions and contributions withheld by employer on behalf of
employees which are due or have accrued with respect to service prior to
the Closing Date have been or will be paid to each Employee Benefit Plan
prior to the Closing Date. Seller has filed or caused to be filed on a
timely basis returns, reports, statements, notices, declarations and other
documents required by any Governmental or Regulatory Authority with respect
to each such Employee Benefit Plan. Each trust, insurance contract or fund
related to an Employee Benefit Plan which is transferred by Seller for
the benefit of Purchaser is or will be at the Closing Date funded such that
at the Closing Date, the assets available to Purchaser under the applicable
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trust, insurance contract or fund related to such Employee Benefit Plan
will be sufficient to discharge all liabilities arising under the
respective Employee Benefit Plan accrued as of, or related to service prior
to, the Closing Date as they become due. Schedule 1.2(b) contains a true
and complete list of all such trusts, insurance contracts and funds.
Section 2.8. Brokers. All negotiations relative to
this Agreement and the transactions contemplated hereby have been carried
out by Seller directly with Purchaser without the intervention of any
Person on behalf of Seller in such manner as to give rise to any valid
claim by any Person against Seller or Purchaser for a finder's fee,
brokerage commission or similar payment.
Section 2.9. Real Property. Part I of Schedule 2.9
sets forth a list of each of Seller's factories and Seller's headquarters
which are included in the Included Assets (each, a "Facility") and
the location of such Facility. With respect to each such Facility, except
as set forth in Part II of Schedule 2.9:
(a) there are no pending or, to the Knowledge
of Seller, threatened condemnation proceedings, lawsuits or administrative
actions relating to the Facility or other matters materially adversely
affecting the current use, occupancy or value thereof;
(b) each Facility has received all approvals
of Governmental or Regulatory Authorities (including permits) required in
connection with the ownership, occupation or current operation thereof and
has been operated and maintained in accordance with material applicable
Laws;
(c) there are no leases, subleases, licenses,
concessions or other agreements, written or oral, granting to any Person
the right of use or occupancy of any portion of a Facility and no Person
other than Seller or TDP is in possession of any Facility or part thereof;
(d) there are no outstanding options or rights
of first refusal to purchase a Facility or interest therein; and
(e) each Facility is supplied with utilities
and other services necessary and adequate for the current operation of the
Facility, and each Facility is located on, or has irrevocable access to, a
public road.
Seller has provided Purchaser true and complete copies of all leases
governing any part of the Facilities.
Section 2.10. Ownership of Assets and Related Matters.
Seller owns good and marketable title to or a valid leasehold in all of the
Included Assets, free and clear of any and all Liens other than such
encumbrances or imperfections of title as are set forth in Part II of
Schedule 2.9 hereto. The Liens described in Part II of Schedule 2.9
are referred to as "Permitted Liens." On the Closing Date, Seller shall
transfer and vest in Purchaser good and marketable title to all of the
Included Assets, subject to only the Permitted Liens. The Included Assets
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include all assets of Seller that are used by Seller or necessary in the
current operation of the Business. All of the Included Assets are
free from material defects and are in good operating condition and repair
(subject to normal wear and tear, maintenance and obsolescence) and
are usable in the regular and ordinary course of business and conform to
all applicable Laws relating thereto.
Section 2.11. Environmental Matters.
(a) Except as set forth on Schedule 2.11, (i)
Seller has not used, stored, treated, transported, manufactured, refined,
handled, produced or disposed of any Hazardous Materials or
Petroleum Products on, under, at, from or in any way affecting any of the
Facilities in any manner which at the time of the action in question
violated any Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal
of Hazardous Materials or Petroleum Products, and (ii) to the Knowledge of
Seller, no prior owner of any of the Facilities, TDP or any tenant,
subtenant, prior tenant or prior subtenant thereof has used Hazardous
Materials or Petroleum Products on, from or in any way affecting any of the
Included Assets, in any manner which at the time of the action in question
violated any Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal
of Hazardous Materials or Petroleum Products.
(b) Except as set forth on Schedule 2.11,
Seller has no obligations or liabilities, whether absolute or contingent,
accrued or unaccrued, asserted or unasserted, that could have a material
adverse effect on any of the Facilities and no pending claims have been
made, or presently outstanding citations or notices have been issued,
against Seller, that could have a material adverse effect on any of the
Included Assets and that in the case of the foregoing have been or are
imposed by reason of or based upon any provision of any Environmental Laws,
including, without limitation, any such obligations or liabilities relating
to or arising out of or attributable, in whole or in part, to the
manufacture, processing, distribution, use, treatment, storage, release,
disposal, arranging for disposal, transport or handling of any Hazardous
Materials or Petroleum Products by Seller or, to the Knowledge of Seller,
by any prior owner of any of the Facilities, TDP or any other
Person.
(c) Seller has received all Permits as may be
required under applicable Environmental Laws to conduct its present
business at the Facilities, and Seller is in compliance in all
material respects with the terms and conditions of all such Permits.
Section 2.12. Labor Matters. Schedule 2.12 lists all
employment, consultancy, collective bargaining or other similar agreements
to which Seller and any employee of Seller listed on Schedule
4.6 hereto are parties. Except as set forth in Schedule 2.12, with respect
to any employee of Seller listed on Schedule 4.6 hereto:
(a) Seller is and has been in compliance in
all material respects with all applicable Laws respecting employment and
employment practices, terms and conditions of employment and wages and
hours;
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(b) no grievance or any arbitration proceeding
arising out of or under collective bargaining or similar agreements is
pending and, to the Knowledge of Seller, no claims therefor exist or
have been threatened;
(c) there is no litigation, arbitration
proceeding, governmental investigation, citation or action of any kind
pending or, to the Knowledge of Seller, proposed or threatened against
Seller relating to employment, employment practices, terms and conditions
of employment or wages and hours; and
(d) to the Knowledge of Seller, Seller's
relations with such employees are satisfactory.
Section 2.13. Accuracy of Information. This Agreement
and all other documents provided by Seller to Purchaser in connection with
the transactions contemplated herein, taken as a whole, do not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein not misleading.
Section 2.14. Employees. All employees of Seller listed
on Schedule 4.6 are employed by Seller in connection with Seller's current
operation of its Business, and all such employees devote at least a
majority of their time to the Business or to the maintenance or operation
of the KingAir 200 aircraft registered as "TAB-X" or the boat identified in
Section 1.2(g). The wage, salary and benefits that each employee listed on
Schedule 4.6 is paid by Seller as of the Closing Date, and the commencement
date of service with Seller of each such employee provided separately to
Purchaser is true and correct.
Section 2.15. Contracts. Those contracts, leases,
agreements, licenses and other instruments listed on Schedule 1.2(b)
(collectively, the "Tabex Contracts") are legal, valid and binding
obligations of Seller enforceable against Seller in accordance with their
terms and are in full force and effect. No event has occurred
that would, with the passage of time or compliance with any applicable
notice requirements, constitute a default by Seller or, to the Knowledge of
Seller, any other party under any of such Tabex Contracts, and, to the
Knowledge of Seller, no party to any such Tabex Contract intends to cancel,
terminate or exercise any option under any of such Tabex Contracts.
Section 2.16. Insolvency Act. The execution of this
Agreement and the consummation of the transactions contemplated hereby (a)
are not being undertaken with the intent of hindering, delaying or
defrauding creditors; (b) will result in Seller receiving reasonably
equivalent value or fair consideration for the Included Assets; (c)
are not being undertaken at a time when Seller is insolvent; (d) will not
render Seller insolvent; (e) will not result in Seller being engaged in a
business for which its remaining assets constitute unreasonably small
capital; and (f) will not result in Seller having debts beyond its ability
to pay as they mature (as the foregoing terms are defined in or interpreted
under the Insolvency Act [Chapter 6:04] or similar laws.)
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Section 2.17. No Other Representations. Notwithstanding
anything to the contrary contained in this Agreement, it is the explicit
intent of each party hereto that Seller is making no representation or
warranty whatsoever, express or implied, except those representations
and warranties contained in this Article II.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as
follows:
Section 3.1. Organization. Purchaser is a resident
corporation validly existing and in good standing under the Laws of
Zimbabwe. Purchaser has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby, including without
limitation to own, hold and purchase (pursuant to this Agreement) the
Included Assets.
Section 3.2. Authorization. The execution, by the
individual signing below on behalf of Purchaser, and the delivery by
Purchaser of this Agreement and the performance by Purchaser of its
obligations hereunder have been duly and validly authorized by the Board of
Directors of Purchaser and to the extent required by Law, of the
stockholders of Purchaser, no other corporate action on the part of
Purchaser or its stockholders being necessary except for any filings that
may be necessary in terms of Section 136(1) of the Companies Act (Chap
24:03). This Agreement has been duly and validly executed and
delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with
its terms.
Section 3.3. No Conflicts. The execution and delivery
by Purchaser of this Agreement do not, and the performance by Purchaser of
its obligations under this Agreement and the consummation of the
transactions contemplated hereby will not:
(a) conflict with or result in a violation or
breach of any of the certificate or articles of incorporation or bylaws or
other comparable organizational and other documents governing the operation
of Purchaser;
(b) subject to obtaining the consents,
approvals and actions, making the filings and giving the notices disclosed
in Schedule 3.4 hereto, conflict with or result in a violation or breach of
any Law or Order applicable to Purchaser or any of its Assets and
Properties; or
(c) except as disclosed in Schedule 3.3(c)
hereto, (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default
under, (iii) require Purchaser to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or
under the terms of, or (iv) result in the creation or imposition of any
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Lien upon Purchaser or any of its Assets or Properties under, any Contract
or License to which Purchaser is a party or by which any of its Assets and
Properties is bound; other than such conflicts, violations, defaults,
breaches, consents, approvals, authorizations, filings or notices referred
to in paragraph (a), (b) or (c) which could not in the aggregate
reasonably be expected to materially adversely affect the validity or
enforceability of this Agreement.
Section 3.4. Governmental Approvals and Filings.
Except as disclosed in Schedule 3.4 hereto, no consent, approval or action
of, filing with or notice to any Governmental or Regulatory Authority
on the part of Purchaser is required in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, except where the failure to obtain any
such consent, approval or action to make any such filing or to give any
such notice could not reasonably to expected to materially adversely affect
the validity or enforceability of this Agreement.
Section 3.5. Legal Proceedings. Except as disclosed in
Schedule 3.5, there are no Actions or proceedings pending or, to the
Knowledge of Purchaser, threatened against, relating to or affecting
Purchaser or any of its Assets and Properties which could reasonably be
expected to result in the issuance of an Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
Section 3.6. Inspection By Purchaser. Purchaser agrees
that the Immovable Property is sold by Seller and purchased by Purchaser
subject to any servitudes, encumbrances, terms, restrictive covenants, data
and other conditions (collectively the "Conditions") reflected on or
referred to in Seller's title deeds for the Immovable Property or contained
in any town planning scheme, or approval of sub-division, related to the
Immovable Property, and Purchaser is fully acquainted with all such
Conditions.
Section 3.7. Brokers. All negotiations relative to
this Agreement and the transactions contemplated hereby have been carried
out by Purchaser directly with the Seller without the intervention of any
Person on behalf of Purchaser in such manner as to give rise to any valid
claim by any Person against Seller for a finder's fee, brokerage commission
or similar payment.
Section 3.8. Financing. Purchaser has or will have on
the Closing Date, in U.S. dollars, sufficient cash and/or available credit
facilities (and has provided Seller with evidence thereof) to pay the
Purchase Price and to make all other necessary payments of fees and
expenses in connection with the transactions contemplated by this
Agreement.
Section 3.9. Tobacco Buyer's Licenses. Purchaser
acknowledges that Seller has submitted applications to the Tobacco
Marketing Board for Class A buyer's licenses for Xxxxxx Tobaccos for the
1997 season and Class A buyer's licenses for Flue-Cured Tobaccos for the
1997 season (collectively, the "Licenses"). Purchaser acknowledges that
Seller has agreed to use Seller's commercially reasonable efforts
to obtain the Licenses in the name of Seller prior to the Closing Date, to
the extent allowed by Law. Purchaser further acknowledges that Seller has
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made no representation or warranty as to the transferability, marketability
or validity of any Licenses obtained in Seller's name, the ability of
Purchaser to obtain the Licenses in Purchaser's name or the consequences of
any failure of Purchaser to obtain the Licenses in Purchaser's name.
Section 3.10. Collective Bargaining Agreement.
Purchaser agrees that it is Purchaser's responsibility, and not the
responsibility of Seller, for Purchaser to negotiate any collective
bargaining or other similar agreement with any of those employees listed on
Schedule 4.6.
ARTICLE IV
COVENANTS OF SELLER
Seller covenants and agrees with Purchaser that, at all
times from and after the date hereof until the Closing, Seller will comply
with all covenants and provisions of this Article IV applicable to Seller,
except to the extent Purchaser may otherwise consent in writing.
Section 4.1. Regulatory and Other Approvals. Seller
will (a) use all commercially reasonable efforts and proceed diligently and
in good faith as promptly as practicable to obtain all consents,
approvals or actions of, to make all filings with and to give all notices
to Governmental or Regulatory Authorities or any other Person required
of Seller to consummate the transactions contemplated hereby, (b) provide
such other information and communications to such Governmental or
Regulatory Authorities or other Persons as such Governmental or Regulatory
Authorities or other Persons may reasonably request and (c) provide
reasonable cooperation to Purchaser in obtaining all consents,
approvals or actions of, making all filings with and giving all notices to
Governmental or Regulatory Authorities or other Persons required of
Purchaser to consummate the transactions contemplated hereby. Seller will
provide prompt notification to Purchaser when any such consent, approval,
action, filing or notice referred to in clause (a) above is obtained,
taken, made or given, as applicable, and will advise Purchaser of any
communications (and, unless precluded by Law, provide copies of any such
communications that are in writing) with any Governmental or Regulatory
Authority or other Person regarding any of the transactions contemplated by
this Agreement.
Section 4.2. Investigation by Purchaser. Seller will
(a) provide Purchaser and its officers, employees, counsel, accountants,
financial advisors, consultants and other representatives (together,
"Representatives") with access, upon reasonable prior notice and during
normal business hours, to all officers, employees, agents and accountants
of Seller regarding the Included Assets and Books and Records regarding
the Included Assets as Purchaser or any such Representative may reasonably
request, but only to the extent that such access does not unreasonably
interfere with the business and operations of Seller and (b) furnish
Purchaser and any such Representative with all such information and data
(including without limitation copies of Contracts, Employee Benefit Plans
and other Books and Records) regarding the Included Assets as Purchaser
or any such Representative reasonably may request in connection with such
investigation, but only to the extent that furnishing any such information
or data would not violate any Law, Order, Contract, or License applicable
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to Seller or by which any of its Assets and Properties is bound; provided
that Seller has identified such information or data that it is unable to
furnish pursuant to the preceding clause in Schedule 4.2.
Section 4.3. No Solicitations. Seller will not take
(or authorize or permit any investment banker, financial advisor, attorney,
accountant or other Person retained by or acting for or on
behalf of Seller to take), directly or indirect, any action to initiate,
assist, solicit, receive, negotiate, encourage or accept any offer
or inquiry from any Person (a) to engage in any purchase or transfer of the
Included Assets, (b) to reach any agreement for, or otherwise
attempt to consummate, any purchase or transfer of the Included Assets or
(c) to furnish or cause to be furnished any information with respect to
the Included Assets to any Person (other than as contemplated by Section
4.2).
Section 4.4. Conduct of Business. Seller will use
commercially reasonable efforts to (a) keep available (subject to
dismissals and retirements in the ordinary course of business) the
services of the key officers and employees of Seller listed on Schedule 4.6
in all material respects, (b) maintain the Included Assets in good
working order and condition, ordinary wear and tear excepted and (c)
maintain the goodwill of customers and suppliers of the Business.
Section 4.5. Fulfillment of Conditions. Seller will
use all commercially reasonable efforts and proceed diligently and in good
faith to satisfy each condition to the obligations of Purchaser contained
in this Agreement and will not take any action that could reasonably be
expected to result in the nonfulfillment of any such condition.
Section 4.6. Employees. Seller agrees that, effective
as of the Closing Date, the employees listed on Schedule 4.6 hereto shall
cease to be employees of Seller and, unless any such employee voluntarily
terminates employment, or is deceased, prior to the Closing Date, shall
be and become employees of Purchaser and that Purchaser shall be
responsible and assume liability for all compensation, salary, pension,
severance and other employee benefits, taxes and costs, including
contributions to and maintenance of any Employee Benefits Plans identified
in Schedule 2.7, and all other obligations arising out of employment,
consultancy, collective bargaining or other similar agreements or letters
of employment identified in Schedule 2.12, which become due to, accrue to
the benefit of, or with respect to, such employees after the Closing Date
and with respect to services provided to Purchaser after the Closing Date.
Seller further acknowledges and agrees that (i) it shall not, and shall not
represent that it has authority to, give any assurances as to continued
employment with Purchaser after the Closing Date of those employees of
Seller listed on Schedule 4.6 and (ii) Purchaser's obligations to
employ such employees are only as expressly set forth in this Agreement.
Seller shall pay (a) to Purchaser, within ten (10) days after
written notice from Purchaser, any amount which Purchaser is legally
obligated to pay, upon termination of employment, to any employee listed on
Schedule 4.6 in respect of compensation, salary, pension, severance
or other employee benefits, taxes or costs payable under applicable Law in
effect on the Closing Date, contributions to and maintenance of
any Employee Benefit Plans identified in Schedule 2.7 as such plans are in
effect immediately prior to the Closing Date, or in respect of any other
obligations arising out of any employment, consultancy, collective
bargaining or other similar agreement or letter of employment identified on
Schedule 2.12 as such agreements or letters are in effect immediately prior
to the Closing Date, if and to the extent that any such amount relates to
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service of such employee to Seller prior to the Closing Date;
provided that any claim by Purchaser against Seller for any such amount
shall be made not later than the last day of the calendar month which is
eighteen (18) months after the Closing Date and (b) on or prior to the
Closing Date, to each employee listed on Schedule 4.6 an amount equal to
pay in lieu of vacation or leave accrued but not taken through the Closing
Date (any such amount payable by Seller to Purchaser or each such employee
pursuant to this Section 4.6 being referred to herein as a "Pre-Closing
Employee Liability").
Section 4.7. Tobacco Buyer's Licenses. Subject to the
provisions of Sections 3.9 and 10.1(e), Seller shall use its commercially
reasonable efforts to obtain, prior to the Closing Date, the Licenses in
the name of Seller, to the extent allowed by Law.
Section 4.8. Insurance. Seller shall procure or
maintain policies of insurance effective up to the Closing Date in
commercially reasonable amounts on those Included Assets listed on
Schedule 1.2(a), to the extent Seller has an insurable interest in such
Included Assets, and shall add Purchaser as an additional named insured
on such policies.
ARTICLE V
COVENANTS OF PURCHASER
Purchaser covenants and agrees with Seller that, at all
times from and after the date hereof until the Closing Purchaser will
comply with all covenants and provisions of this Article V, except to the
extent Seller may otherwise consent in writing.
Section 5.1. Regulatory and Other Approvals. Purchaser
will (a) use all commercially reasonable efforts and proceed diligently and
in good faith as promptly as practicable to obtain all consents, approvals
or actions of, to make all filings with and to give all notices to
Governmental or Regulatory Authorities or any other Person required
of Purchaser to consummate the transactions contemplated hereby, including
without limitation those described in Schedules 3.3(c) and 3.4 hereto, (b)
provide such other information and communications to such Governmental or
Regulatory Authorities or other Persons as such Governmental or Regulatory
Authorities or other Persons may reasonably request and (c) provide
reasonable cooperation to Seller in obtaining all consents, approvals or
actions of, making all filings with and giving all notices to Governmental
or Regulatory Authorities or other Persons required of Seller to consummate
the transactions contemplated hereby. Purchaser will provide prompt
notification to Seller when any such consent, approval, action, filing or
notice referred to in clause (a) above is obtained, taken, made or given,
as applicable, and will advise Seller of any communications (and, unless
precluded by Law, provide copies of any such communications that are in
writing) with any Governmental or Regulatory Authority or other Person
regarding any of the transactions contemplated by this Agreement.
Section 5.2. Employees. (a) Purchaser agrees that,
effective of the Closing Date, the employees listed on Schedule 4.6 hereto
shall cease to be employees of Seller and, unless any such employee
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voluntarily terminates employment or is deceased, as of the Closing Date.
shall be and become employees of Purchaser and that, except as provided in
Section 4.6, Purchaser shall be responsible and assume liability for all
compensation, salary, pension, severance and other employee benefits, taxes
and costs, including contributions to and maintenance of any Employee
Benefits Plans identified in Schedule 2.7, and all other obligations
arising out of employment, consultancy, collective bargaining or other
similar agreements or letters of employment identified in Schedule 2.12,
which become due to, accrue to the benefit of, or with respect to, such
employees after the Closing Date and with respect to services provided to
Purchaser after the Closing Date; (b) except as otherwise provided by any
Employee Benefit Plans identified in Schedule 2.7 or by any employment,
consultancy, collective bargaining or other similar agreements or letters
of employment identified in Schedule 2.12, Purchaser shall (i) pay the
employees listed on Schedule 4.6 an initial wage or salary not less than
the wage or salary that each such employee received from Seller as of the
Closing Date as shown on Schedule 4.6, and with any adjustments thereto
made by Seller in accordance with Seller's normal wage and salary
adjustment policies; (ii) employ the employees listed on Schedule 4.6 in
positions comparable to the positions in which such employees are
employed by Seller as of the Closing Date; and (iii) effective on the
Closing Date provide each such employee with medical, severance, pension,
insurance, leave and other employee benefits not less than (x) those which
the employee was eligible to receive from Seller on or before the Closing
Date and (y) those available to similarly-situated employees of Purchaser;
and (c) except with respect to those benefits for which such employees
shall immediately vest pursuant to this Section 5.2, Purchaser shall give
each such employee full credit for length of service with Seller when
determining eligibility for employee benefits. Purchaser shall be under no
obligation, except as required by applicable Law, to continue after the
Closing Date the employment of any of the employees listed on Schedule 4.6;
provided that to the extent Purchaser continues such employment, it shall
be on the terms provided in this Section 5.2.
Section 5.3. Payment of Fees and Expenses. Purchaser
will pay the Purchase Price when due as set forth in Section 1.4 and will
pay when due all other necessary payments of transfer fees and duties
and stamp duties related to the transfer of ownership of the Included
Assets, except as otherwise provided in Section 10.1 hereto.
Section 5.4. Fulfillment of Conditions. Purchaser will
use all commercially reasonable efforts and proceed diligently and in good
faith to satisfy each condition to the obligations of Seller contained in
this Agreement and will not take or fail to take any action that could
reasonably be expected to result in the nonfulfillment of any such
condition.
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ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder are
subject to the fulfillment, at or before the Closing, of each of the
following conditions (all or any of which may be waived in whole or in part
by Purchaser in its sole discretion):
Section 6.1. Representations and Warranties. The
representations and warranties made by Seller in this Agreement taken as a
whole shall be true and correct in all material respects on and as of the
Closing Date as though made on and as of the Closing Date or, in the case
of representations and warranties made as of a specified date earlier than
the Closing Date, on and as of such earlier date.
Section 6.2. Performance. Seller shall have performed
and complied with, in all material respects, the agreements, covenants and
obligations required by this Agreement to be so performed or complied with
by Seller at or before the Closing.
Section 6.3. Officers' Certificates. Seller shall have
delivered to Purchaser a certificate, dated the Closing Date and executed
by any authorized officer of Seller, substantially in the form and to the
effect of Exhibit A hereto, and a certificate, dated the Closing Date and
executed by the Secretary or any Assistant Secretary of Seller,
substantially in the form and to the effect of Exhibit B hereto.
Section 6.4. Orders and Laws. There shall not be in
effect on the Closing Date any Order or Law restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any
of the transactions contemplated by this Agreement.
Section 6.5. Regulatory Consents and Approvals. All
consents, approvals and actions of, filings with and notices to any
Governmental or Regulatory Authority necessary to permit Purchaser
and Seller to perform their obligations under this Agreement and to
consummate the transactions contemplated hereby which are listed on
Part I of Schedule 6.5 hereto, shall have been duly obtained, made or given
and shall be in full force and effect, and all terminations or expirations
of waiting periods imposed by any Governmental or Regulatory Authority
necessary for the consummation of the transactions contemplated by this
Agreement shall have occurred, except for those filings and notices listed
on Part II of Schedule 6.5 which shall have been duly made or given but for
which waiting periods imposed by any Governmental or Regulatory Authority
shall not have terminated or expired.
Section 6.6. Third Party Consents. The consents (or in
lieu thereof waivers) listed in Schedule 6.6 hereto shall have been
obtained and shall be in full force and effect.
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Section 6.7. Opinion of Counsel. Purchaser shall have
received the opinion of Winterton, Xxxxxx & Xxxx, counsel to Seller, dated
the Closing Date, substantially in the form and to the effect of Exhibit C
hereto, with such changes as are reasonably acceptable to Purchaser.
Section 6.8. Settlement of Accounts. All amounts owed
by or to Seller by Purchaser or any Affiliates of Purchaser shall have been
paid in full. All amounts owed by or to the Seller by any Related Party of
Seller shall have been paid in full (including any amounts due from or owed
to Intabex). A Related Party of Seller is (a) any record or beneficial
owner of 5% or more of the voting securities of Seller, (b) any
director, officer or employee of Seller or any of Seller's Subsidiaries,
(c) any person, firm or corporation that directly or indirectly controls,
is controlled by or is under common control with, Seller or any of its
Subsidiaries or (d) any member of the immediate families of any such
persons.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller hereunder are subject
to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by Seller
in its sole discretion):
Section 7.1. Representations and Warranties. The
representations and warranties made by Purchaser in this Agreement taken
as a whole shall be true and correct in all material respects on and as
of the Closing Date as though made on and as of the Closing Date.
Section 7.2. Performance. Purchaser shall have
performed and complied with, in all material respects, the agreements,
covenants and obligations required by this Agreement to be so performed or
complied with by Purchaser at or before the Closing.
Section 7.3. Officers' Certificates. Purchaser shall
have delivered to Seller a certificate, dated the Closing Date and
executed by any authorized officer of Purchaser, substantially in the
form and to the effect of Exhibit D hereto, and a certificate, dated the
Closing Date and executed by the Secretary or Assistant Secretary of
Purchaser, substantially in the form and to the effect of Exhibit E
hereto.
Section 7.4. Orders and Laws. There shall not be in
effect on the Closing Date any Order or Law restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
Section 7.5. Regulatory Consents and Approvals. All
consents, approvals and actions of, filings with and notices to any
Governmental or Regulatory Authority necessary to permit Seller and
Purchaser to perform their obligations under this Agreement and to
consummate the transactions contemplated hereby, which are listed on
Schedule 7.5 hereto, shall have been duly obtained, made or given and
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shall be in full force and effect, and all terminations or expirations
of waiting periods imposed by any Governmental or Regulatory Authority
necessary for the consummation of the transactions contemplated by this
Agreement shall have occurred.
Section 7.6. Third Party Consents. The consents (or
in lieu thereof waivers) listed in Schedule 7.6 shall have been obtained
and shall be in full force and effect.
Section 7.7. Opinion of Counsel. Seller shall have
received the opinion of Xxxxxxx, Welsh & Guest, counsel to Purchaser,
dated the Closing Date, substantially in the form and to the effect of
Exhibit F hereto, with such changes as are reasonably acceptable to
Seller.
ARTICLE VIII
TERMINATION
Section 8.1. Termination. This Agreement may be
terminated, and the transactions contemplated hereby may be abandoned:
(a) at any time before the Closing, by
mutual written agreement of Seller and Purchaser;
(b) at any time before the Closing, by
Seller or Purchaser, in the event that any Order or Law becomes
effective restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by
this Agreement or materially adversely affecting the business of
purchasing and processing leaf tobacco or selling processed tobacco
and other consumer tobacco products in Zimbabwe, upon notification
of the non-terminating party by the terminating party; provided
that the terminating party has used its best efforts to have any
such Order removed;
(c) at any time before the Closing, in the
event that either party breaches any of the terms and conditions
hereof and fails to rectify such breach within twenty-one (21) days
of the date of receipt of written notice from the non-breaching party
calling upon the breaching party to rectify such breach, upon
notification of the breaching party by the non-breaching party;
(d) at any time before the Closing, by
Seller or Purchaser if Seller is denied issuance of the Licenses by
the Tobacco Marketing Board or another Governmental or Regulatory
Authority; and
(e) at any time after June 30, 1997 by
Seller or Purchaser upon notification of the non-terminating party
by the terminating party if the Closing shall not have occurred on
or before such date and such failure to consummate is not caused by
a breach of this Agreement by the terminating party.
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Section 8.2. Effect of Termination. If this
Agreement is validly terminated pursuant to Section 8.1, this
Agreement will forthwith become null and void, and there will be
no liability or obligation on the part of Seller or Purchaser
(or any of their respective officers, directors, employees,
agents or other representatives or Affiliates), except that the
provisions with respect to expenses in Section 9.3 and
confidentiality in Section 9.5 will continue to apply following any
such termination. Notwithstanding any other provision in this
Agreement to the contrary, upon termination of this Agreement
pursuant to Section 8.1(b) or (c), Seller will remain liable to
Purchaser for any willful breach of Section 4.5 of this Agreement
by Seller existing at the time of such termination, and Purchaser
will remain liable to Seller for any willful breach of Section
5.4 of this Agreement by Purchaser existing at the time of such
termination, and Seller or Purchaser may seek such remedies,
including damages and fees of attorneys, against the other with
respect to any such willful breach as are provided in this
Agreement or as are otherwise available at Law or in equity.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. All notices, requests
and other communications hereunder must be in writing and will
be deemed to have been duly given only if delivered personally
or by facsimile transmission (with postage prepaid mail
confirmation) or mailed (postage prepaid with an internationally
recognized overnight courier service) to the parties at the
following addresses or facsimile numbers:
If to Purchaser, to:
Dibrell Brothers Zimbabwe (Private) Limited
00 Xxxxxxxx Xx.
Corner of Xxxxxxxxxx Xx.
X.X. Xxx 0000
Xxxxxxxxxx Xxxxxx
Facsimile No.: 000-0-000000
Attn.: Xxxx Xxxx
with copies to:
Xxxxxxx, Welsh & Guest
Executive Xxxxxxxx
Xxxxxx Silundika Avenue
Post Office Box 53 or 2093
Harare, Zimbabwe
Facsimile No.: 756268
Attn.: Xxxxxxxxxxx X. Xxxxxx
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Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: 804/788-8218
Attn.: Xxxxxxxx X. Xxxxx
If to Seller, to:
Winterton, Xxxxxx & Xxxx
0 Xxxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx
Facsimile No.: 727353
Attn.: Xxxxx Xxxxxxxxx/Xxx Passaportis
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: 404/572-5145
Attn.: Xxxx X. Xxxxxx, Xx.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section, be deemed given upon
receipt, and (iii) if delivered by an internationally recognized
overnight courier in the manner described above to the address as
provided in this Section, be deemed given upon the earlier of (x) the
second business day after the date of mailing or (y) the date of actual
receipt (in each case regardless of whether such notice is received by
any other Person to whom a copy of such notice, request or other
communication is to be delivered pursuant to this Section). Any party
from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice
specifying such change to the other party hereto.
Section 9.2. Entire Agreement. This Agreement
supersedes all prior discussions and agreements between the parties
with respect to the subject matter hereof and contains the sole and
entire agreement between the parties hereto with respect to the
subject matter hereof; provided that nothing herein shall affect (i)
the validity of the Confidentiality Agreement and (ii) any other
written agreements or understandings entered into by the parties or
their affiliates contemporaneously with the execution and delivery
of this Agreement, all of which shall remain in full force and
effect.
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Section 9.3. Expenses. Except as otherwise
expressly provided in this Agreement, whether or not the transactions
contemplated hereby are consummated, each party will pay its own
costs and expenses incurred in connection with the negotiation,
execution and closing of this Agreement and the transactions
contemplated hereby.
Section 9.4. Public Announcements. At all times
at or before the Closing, Seller and Purchaser will not issue or
make any reports, statements or releases to the public or generally
to the employees, customers, suppliers or other Persons to whom the
Seller sell goods or provide services or with whom the Seller
otherwise have significant business relationships with respect to this
Agreement or the transactions contemplated hereby without the consent
of the other, which consent shall not be unreasonably withheld. If
either party is unable to obtain the approval of its public report,
statement or release from the other party and such report, statement
or release is, in the opinion of legal counsel to such party,
required by Law in order to discharge such party's legal or
contractual disclosure obligations, then such party may make or
issue the required report, statement or release and promptly furnish
the other party with a copy thereof. Seller and Purchaser will also
obtain the other party's prior approval of any press release to be
issued immediately following the Closing announcing the consummation
of the transactions contemplated by this Agreement.
Section 9.5. Confidentiality. Each party hereto
will hold, and will use all commercially reasonable efforts to cause
its Affiliates, and their respective Representatives to hold, in
strict confidence from any Person (other than any such Affiliate or
Representative), all documents and information concerning the other
party or any of its Affiliates furnished to it by the other party
or such other party's Representatives in connection with this
Agreement or the transactions contemplated hereby. In addition, each
party hereto agrees that it will not, and that it will use all
commercially reasonable efforts to cause its Affiliates and their
respective Representatives not to, disclose the existence of this
Agreement or any of the terms hereof. Notwithstanding the foregoing,
no party shall be required hereunder to keep confidential that
information that (i) is required to be disclosed by applicable Law,
(ii) is of a public nature or has previously been disclosed through
no fault of such party, or (iii) in the case of DIMON or any DIMON
Affiliate, is necessary to be disclosed in connection with any
financings, provided that any such disclosure shall be in accordance
with the terms of the transactions contemplated herein. This
section shall be in addition to and shall not modify the terms of
any other agreement between the parties governing the confidentiality
of such documents and information.
Section 9.6. Further Assurances; Post-Closing
Cooperation. (a) Subject to the terms and conditions of this
Agreement, at any time or from time to time after the Closing, each
of the parties hereto shall execute and deliver such other documents
and instruments, provide such materials and information and take
such other actions as may reasonably be necessary, proper or advisable,
to the extent permitted by Law, to fulfill its obligations under
this Agreement.
(b) Following the Closing, each party
will afford the other party, its counsel and its accountants, during
normal business hours, reasonable access to the books, records and other
data relating to the Included Assets in its possession with respect to
periods prior to the Closing and the right to make copies and extracts
therefrom, to the extent that such access may be reasonably required by
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the requesting party in connection with (i) the preparation of Tax
Returns, (ii) the determination or enforcement of rights and obligations
under this Agreement, (iii) compliance with the requirements of any
Governmental or Regulatory Authority, (iv) the determination or
enforcement of the rights and obligations of any Indemnified Party or
(v) in connection with any actual or threatened Action or Proceeding.
Further, each party agrees for a period extending six (6) years after
the Closing Date not to destroy or otherwise dispose of any such books,
records and other data unless such party shall first offer in writing to
surrender such books, records and other data to the other party and such
other party shall not both (i) within twenty-one (21) days after such
offer is made agree in writing to take possession thereof and (ii) take
possession, during the regular business hours of the offering party, of
any such books, records and other data within twenty-eight (28) days
after such offer is made.
(c) If, in order properly to prepare its Tax
Returns, other documents or reports required to be filed with Governmental
or Regulatory Authorities or its financial statements or to fulfill its
obligations hereunder, it is necessary that a party be furnished with
additional information, documents or records relating to the Included
Assets not referred to in paragraph (b) above, and such information,
documents or records are in the possession or control of the other party,
such other party agrees to use all commercially reasonable efforts to
furnish or make available such information, documents or records (or
copies thereof) at the recipient's request, cost and expense. Any
information obtained by Seller in accordance with this paragraph shall
be held confidential by Seller in accordance with Section 9.5.
Section 9.7 Waiver. Any term or condition
of this Agreement may be waived at any time by the party that is
entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf
of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other
term or condition of this Agreement on any future occasion. All
remedies, either under this Agreement or by Law or otherwise afforded,
will be cumulative and not alternative.
Section 9.8. Amendment. This Agreement may be
amended, supplemented or modified only by a written instrument duly
executed by or on behalf of each party hereto.
Section 9.9. No Third Party Beneficiary. The terms
and provisions of this Agreement are intended solely for the benefit of
each party hereto and their respective successors or permitted assigns,
and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person.
Section 9.10. No Cession or Assignment; Binding
Effect. This Agreement or any right, interest or obligation hereunder
may not be ceded or assigned by any party hereto without the prior
written consent of the other party hereto and any attempt to do so
will be void, except (a) for cessions, assignments and transfers by
operation of Law and (b) that Purchaser may cede or assign any or
all of its rights, interests and obligations hereunder to a wholly-
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owned Zimbabwe-resident corporation, provided that any such
subsidiary agrees in writing to be bound by all of the terms,
conditions and provisions contained herein, but no such cession or
assignment referred to in clause (b) shall relieve Purchaser of
its obligations hereunder. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors
and assigns.
Section 9.11. Headings. The headings used in
this Agreement have been inserted for convenience of reference only
and do not define or limit the provisions hereof.
Section 9.12. Invalid Provisions. If any
provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future Law, and if the rights
or obligations of any party hereto under this Agreement will not
be materially and adversely affected thereby, (a) such provision
will be fully severable, (b) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, (c) the remaining provisions
of this Agreement will remain in full force and effect and will
not be affected by the illegal, invalid or unenforceable provision
or by its severance here from and (d) in lieu of such illegal,
invalid or unenforceable provision, there will be added
automatically as a part of this Agreement a legal, valid and
enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
Section 9.13. Governing Law. This Agreement
shall be governed by and construed in accordance with the Laws of
Zimbabwe.
Section 9.14. Counterparts. This Agreement may
be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one
and the same instrument.
Section 9.15. Survival of Representations or
Warranties. The representations, warranties, covenants and
agreements of Seller and Purchaser contained in this Agreement
will survive the Closing (a) indefinitely with respect to the
representations and warranties contained in Sections 2.2, 2.8,
3.2 and 3.7 and the indemnification obligations pursuant to
Section 10.1(a)(ii), (b) the longer of three years or the
expiration of any applicable statute of limitations for any
underlying tax claim with respect to the representations and
warranties contained in Section 2.5, (c) three years with respect
to the representations and warranties contained in Section 2.16
and (d) until September 30, 1998 in the case of each other
representation, warranty, covenant and agreement, except that
any representation, warranty, covenant or agreement that would
otherwise terminate in accordance with clause (a), (b), (c) or
(d) above will continue to survive if a Claim Notice or Indemnity
Notice (as applicable) shall have been timely given in good faith
based on facts reasonably expected to establish a valid claim
under Article X on or prior to such termination date, until
the related claim for indemnification has been satisfied or
otherwise resolved as provided in Article X. This Section shall
not limit in any way the survival and enforceability of any
covenant or agreement of the parties hereto which by its terms
contemplates performance after the Closing Date, which shall
survive for the respective periods set forth herein.
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Section 9.16. Specific Performance. The parties
hereto agree that irreparable damage would occur in the event any of
the provisions of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other
remedy at law or equity for the breach of any representation, warranty,
or covenant contained herein.
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnification.
(a) Subject to paragraphs (c), (d) and (e)
of this Section and the other Sections of this Article X, (i) Seller
shall indemnify Purchaser and its officers, directors, employees, agents
and Affiliates in respect of, and hold each of them harmless from and
against, any and all Losses suffered, incurred or sustained by any of
them or to which any of them becomes subject, resulting from, arising
out of or relating to any misrepresentation, breach of warranty or breach
of any covenant or agreement on the part of the Company contained in
this Agreement and (ii) Seller shall indemnify Purchaser for all Losses
resulting from, arising out of or relating to (x) any Pre-Closing
Employee Liability to the extent provided in Section 4.6, (y) any
liabilities with respect to the Included Assets that do not constitute
Assumed Liabilities, and (z) Seller's use of the Included Assets in the
operation of the Business prior to the Closing Date.
(b) Subject to paragraphs (c) and (d) of
this Section and the other Sections of this Article X, Purchaser agrees
to indemnify Seller and its officers, directors, employees, agents and
Affiliates in respect of, and hold each of them harmless from and against,
any and all Losses suffered, incurred or sustained by any of them or
to which any of them becomes subject, resulting from, arising out of or
relating to any misrepresentation, breach of warranty or breach of any
covenant or agreement on the part of Purchaser contained in this
Agreement.
(c) Notwithstanding anything to the contrary
contained in this Agreement, no amounts of indemnity shall be payable as
a result of any claim arising under paragraphs (a) and (b) of Section
10.1:
(i) with respect to claims arising
under paragraph (a) only, unless, until and then only to the extent
that the Indemnified Parties thereunder have suffered, incurred,
sustained or become subject to Losses referred to in such paragraph
in excess of U.S. $466,667 in the aggregate (the "Loss Threshold"),
and then to the full extent of such Losses; provided that in
determining whether the Loss Threshold has been met, no Loss under
U.S.$10,000 shall be aggregated; provided further that any claim for
indemnification pursuant to Section 10.1(a)(ii) shall not be subject
to the limitations contained in this Section 10(c)(i).
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(ii) with respect to any claim for
indemnification thereunder, unless the Indemnified Party has given the
Indemnifying Party a Claim Notice or Indemnity Notice, as applicable,
with respect to such claim, setting forth in reasonable detail the
specific facts and circumstances pertaining thereto, (A) as soon as
practical following the time at which the Indemnified Party discovered
such claim (except to the extent the Indemnifying Party is not
prejudiced by any delay in the delivery of such notice) and (B) in
any event prior to the applicable Cut-off Date;
(iii) with respect to any Loss
resulting from a misrepresentation, breach of warranty or breach of
a covenant or agreement that is disclosed in a written notice (which
shall be deemed to include the schedules and exhibits hereto), setting
forth in reasonable detail the specific facts and circumstances
pertaining thereto and specifically indicating that such notice is
intended to modify the schedules and exhibits hereto, delivered by
Seller to Purchaser or by Purchaser to Seller after the date of this
Agreement and at or prior to the Closing (regardless of whether
Purchaser waives such breach or modification in writing or otherwise);
(iv) with respect to any Loss as to
which the Indemnified Parties had a reasonable opportunity, but failed,
in good faith to mitigate their Loss, including but not limited to
their failure to use commercially reasonable efforts to recover under
a policy of insurance or under a contractual right of set-off or
indemnity; or
(v) with respect to any Loss to
the extent it arises from or was caused solely by actions taken by
the Indemnified Party or any of its Affiliates after the Closing.
(d) Notwithstanding anything to the
contrary contained in this Agreement, neither Seller nor Purchaser
shall be liable for any amounts under Sections 10.1(a)(i) and 10.1(b)
in excess of U.S. $12,000,000.
(e) Notwithstanding any thing to the
contrary contained in this Agreement, Seller shall not be liable to, or
hold harmless, Purchaser or Purchaser's officers, directors, employees,
agents or Affiliates from or against any Losses suffered, incurred or
sustained by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to the Licenses or Seller's
applications therefor, including but not limited any lack of validity,
marketability or transferability of the Licenses or Seller's applications
therefor, or to any failure or inability of Purchaser to obtain the
Licenses.
Section 10.2 Method of Asserting Claims. All claims
for indemnification by any Indemnified Party under Section 10.1 will be
asserted and resolved as follows:
(a) In the event any claim or demand in
respect of which an Indemnifying Party might seek indemnity under
Section 10.1 is asserted against or sought to be collected from such
Indemnified Party by a Person other than Seller, Purchaser or any
Affiliate of Seller or Purchaser (a "Third Party Claim"), the
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Indemnified Party shall deliver a Claim Notice with reasonable
promptness to the Indemnifying Party. The Indemnifying Party will
notify the Indemnified Party as soon as practicable within the Dispute
Period whether the Indemnifying Party disputes its liability to the
Indemnified Party under Section 10.1 and whether the Indemnifying Party
desires, at its sole cost and expense, to defend the Indemnified Party
against such Third Party Claim.
(i) If the Indemnifying Party
notifies the Indemnified Party within the Dispute Period that the
Indemnifying Party desires to defend the Indemnified Party with
respect to the Third Party Claim pursuant to this Section 10.2(a),
then the Indemnifying Party will have the right to defend, at the
sole cost and expense of the Indemnifying Party, such Third Party
Claim by all appropriate proceedings, which proceedings will be
vigorously and diligently prosecuted by the Indemnifying Party to
a final conclusion or will be settled at the discretion of the
Indemnifying Party (with the consent of the Indemnified Party,
which consent will not be unreasonably withheld). The
Indemnifying Party will have full control of such defense and
proceedings, including (except as provided in the immediately
preceding sentence) any settlement thereof; provided, however,
that the Indemnified Party may, at the sole cost and expense of
the Indemnified Party, at any time prior to the Indemnifying
Party's delivery of the notice referred to in the first sentence
of this clause (i), file any motion, answer or other pleadings
or take any other action that the Indemnified Party reasonably
believes to be necessary or appropriate to protect its interests
and not prejudicial to the Indemnifying Party (it being understood
and agreed that, except as provided in clause (ii) below, if an
Indemnified Party takes any such action that is prejudicial and
causes a final adjudication that is adverse to the Indemnifying
Party, the Indemnifying Party will be relieved of its obligations
hereunder with respect to the portion of such Third Party Claim
prejudiced by the Indemnified Party's action); and provided
further, that if requested by the Indemnifying Party, the
Indemnified Party will, at the sole cost and expense of the
Indemnifying Party, cooperate with the Indemnifying Party and
its counsel in contesting any Third Party Claim that the
Indemnifying Party elects to contest, or, if appropriate and
related to the Third Party Claim in question, in making any
counterclaim against the Person asserting the Third Party Claim,
or any cross-complaint against any Person (other than the
Indemnified Party or any of its Affiliates). The Indemnified
Party may participate in, but not control, any defense or
settlement of any Third Party Claim controlled by the Indemnifying
Party pursuant to this clause (i), and except as provided in the
preceding sentence, the Indemnified Party will bear its own costs
and expenses with respect to such participation. Notwithstanding
the foregoing, the Indemnified Party may take over the control of
the defense or settlement of a Third Party Claim at any time if it
irrevocably waives its right to indemnity under Section 10.1 with
respect to such Third Party Claim.
(ii) If the Indemnifying Party fails
to notify the Indemnified Party within the Dispute Period that
the Indemnifying Party desires to defend the Third Party Claim
pursuant to Section 10.2(a), or if the Indemnifying Party
gives such notice but fails to prosecute vigorously and
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diligently or settle the Third Party Claim, or if the Indemnifying
Party fails to give any notice whatsoever within the Dispute Period,
then the Indemnified Party will have the right to defend, at the
sole cost and expense of the Indemnifying Party, the Third Party
Claim by all appropriate proceedings, which proceedings will be
vigorously and diligently prosecuted by the Indemnified Party to
a final conclusion or will be settled at the discretion of the
Indemnified Party (with the consent of the Indemnifying Party,
which consent will not be unreasonably withheld). The Indemnified
Party will have full control of such defense and proceedings,
including (except as provided in the immediately preceding sentence)
any settlement thereof; provided, however, that if requested by
the Indemnified Party, the Indemnifying Party will, at the sole
cost and expense of the Indemnifying Party, cooperate with the
Indemnified Party and its counsel in contesting any Third Party
Claim which the Indemnified Party is contesting, or, if appropriate
and related to the Third Party Claim in question, in making any
counterclaim against the Person asserting the Third Party Claim,
or any cross-complaint against any Person (other than the
Indemnifying Party or any of its Affiliates). Notwithstanding
the foregoing provisions of this clause (ii), if the Indemnifying
Party has notified the Indemnified Party within the Dispute
Period that the Indemnifying Party disputes its liability
hereunder to the Indemnified Party with respect to such Third
Party Claim and if such dispute is resolved in favor of the
Indemnifying Party, the Indemnifying Party will not be required
to bear the costs and expenses of the Indemnified Party's
defense pursuant to this clause (ii) or of the Indemnifying
Party's participation therein at the Indemnified Party's request,
and the Indemnified Party will reimburse the Indemnifying Party
in full for all reasonable costs and expenses incurred by the
Indemnifying Party in connection with such litigation. The
Indemnifying Party may participate in, but not control, any
defense or settlement controlled by the Indemnified Party
pursuant to this clause (ii), and the Indemnifying Party will
bear its own costs and expenses with respect to such
participation.
(b) In the event any Indemnified Party
should have a claim under Section 10.1 against any Indemnifying Party
that does not involve a Third Party Claim, the Indemnified Party shall
deliver an Indemnity Notice with reasonable promptness to the
Indemnifying Party.
(c) In the event of any claim for
indemnity under Section 10.1(a), Purchaser agrees to give Seller
reasonable access to the Books and Records and employees of Seller in
connection with the matters for which indemnification is sought to the
extent Seller reasonably deems necessary in connection with its rights
and obligations under this Article X.
Section 10.3 Method of Calculating Losses. The
amount of any indemnification payable under any of the provisions of
this Article X shall be (i) net of any tax benefit realized or the
then-present value (based on a discount rate equal to the prime rate
as published in The Wall Street Journal from time to time) of any
such income tax benefit reasonably expected to be realized by the
Indemnified Party on a consolidated basis by reason of the facts and
circumstances giving rise to the indemnification, and (ii) increased
by the amount of any tax required to be paid by the Indemnified
Party on a consolidated basis as a result of the accrual or receipt
of the indemnification payment.
Section 10.4 Exclusivity. After the Closing, to
the extent permitted by Law, the indemnities set forth in this
Article X shall be the exclusive remedies of Purchaser and Seller and
their respective officers, directors, employees, agents and Affiliates
for any misrepresentation, breach of warranty or breach of any
covenant or agreement contained in this Agreement, and the parties
shall not be entitled to a rescission of this Agreement or to any
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further indemnification rights or claims of any nature whatsoever
in respect thereof, all of which the parties hereto hereby waive.
ARTICLE XI
DEFINITIONS
Section 11.1. Definitions. (a) As used in
this Agreement, the following defined terms shall have the meanings
indicated below:
"Actions or Proceedings" means any action,
suit, proceeding, arbitration or Governmental or Regulatory Authority
investigation.
"Affiliate" means any Person that directly,
or indirectly through one of more intermediaries, controls or is
controlled by or is under common control with the Person specified.
For purposes of this definition, control of a Person means the power,
direct or indirect, to direct or cause the direction of the management
and policies of such Person whether by Contract or otherwise and, in
any event and without limitation of the previous sentence, any Person
owning more than fifty (50%) of the voting securities of a second
Person shall be deemed to control that second Person.
"Agreement" means this Asset Purchase
Agreement and the Exhibits and the Schedules hereto and the
certificates delivered in accordance with Sections 6.3 and 7.3, as
the same shall be amended from time to time.
"Assets and Properties" of any Person means
all assets and properties, including the Included Assets, of every kind,
nature, character and description (whether real, personal or mixed,
whether tangible or intangible, and wherever situated), operated,
owned or leased by such Person which are material to the business,
financial condition or results of operations of such Person and its
subsidiaries taken as a whole.
"Books and Records" means all files,
documents, instruments, papers, books and records relating to the
Included Assets and the Business, including without limitation
financial statements, Tax Returns and related work papers and letters
from accountants, budgets, pricing guidelines, ledgers, journals, deeds,
title policies, minute books, stock certificates and books, stock
transfer ledgers, Contracts, Licenses, customer lists, computer files
and programs, retrieval programs, operating data and plans and
environmental studies and plans.
"Business Day" means a day other than
Saturday, Sunday or any day on which banks located in Harare, Zimbabwe,
London, England and Danville, Virginia are authorized or obligated
to close.
"Claim Notice" means written notification
pursuant to Section 10.2(a) of a Third Party Claim as to which
indemnity under Section 10.1 is sought by an Indemnified Party,
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enclosing a copy of all papers served, if any, and specifying the
nature of and basis for such Third Party Claim and for the Indemnified
Party's claim against the Indemnifying Party under Section 10.1,
together with the amount or, if not then reasonably ascertainable,
the estimated amount, determined in good faith, of such Third Party
Claim.
"Closing" means the closing of the
transactions contemplated by Section 1.4.
"Closing Date" means (a) the fifth Business
Day after the day on which the last of the consents, approvals, actions,
filings, notices or waiting periods described in or related to the
filings described in Sections 6.5 and 6.6 and Sections 7.5 and 7.6 has
been obtained, made or given or has expired, as applicable, or (b) such
other date as Purchaser and Seller mutually agree upon in writing.
"Contract" means any agreement, lease,
evidence of Indebtedness, mortgage, indenture, security agreement or
other contract.
"Cut-off Date" means, with respect to any
representation, warranty, covenant or agreement contained in this
Agreement, the date on which such representation, warranty, covenant
or agreement ceases to survive as provided in Section 9.15.
"Dispute Period" means the period ending
fifteen (15) calendar days following receipt by an Indemnifying Party
of either a Claim Notice or an Indemnity Notice.
"Employee Benefit Plan" means any plan,
program, policy or arrangement to, or on behalf of, one, or more than
one, current or former employee or director or any of their dependents.
"Environmental Laws" shall mean any and all
national, federal, state, provincial, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental or Regulatory Authority regulating,
relating to or imposing liability or standards of conduct concerning
any Hazardous Materials or Petroleum Products or environmental protection
as now or at any time hereafter in effect, together with any amendment
or re-authorization thereto or thereof.
"Governmental or Regulatory Authority" means
any court, tribunal, arbitrator, authority, agency, commission, official
or other instrumentality of any country, state, province, county, city
or other political subdivision.
"Hazardous Materials" shall mean any
hazardous material, hazardous waste, infectious medical waste, hazardous
or toxic substance defined or regulated as such in any or under any
Environmental Law, including without limitation, materials exhibiting
the characteristics of ignitability, corrosivity, reactivity or
extraction procedure toxicity, as such terms are now or hereafter
defined in connection with hazardous materials or hazardous wastes or
hazardous or toxic substances in any Environmental Law.
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"Indebtedness" of any Person means all
obligations of such Person (i) for borrowed money, (ii) evidenced by
notes, bonds, debentures or similar instruments, (iii) for the deferred
purchase price of goods or services (other than trade payables or
accruals incurred in the ordinary course of business), (iv) under
capital leases and (v) in the nature of guarantees of the obligations
described in clauses (i) through (iv) above of any other Person.
"Indemnity Notice" means written notification
pursuant to Section 10.2(b) of a claim for indemnity under Article X by
an Indemnified Party, specifying the nature of and basis for such claim,
together with the amount or, if not then reasonably ascertainable, the
estimated amount, determined in good faith, of such claim.
"Indemnified Party" means any Person claiming
indemnification under any provision of Article X.
"Indemnifying Party" means any Person against
whom a claim for indemnification is being asserted under any provision
of Article X.
"Knowledge of Purchaser" means the actual
knowledge of the officers and employees of Purchaser listed on
Schedule 11.1.
"Knowledge of Seller" means the actual
knowledge of the officers and employees of Seller listed in
Schedule 11.2.
"Laws" means all laws, statutes, rules,
regulations, ordinances and other pronouncements having the effect of
law of any country, state, province, county, city or other political
subdivision or of any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge,
assessment, security interest, lease, lien, adverse claim, levy,
charge, restriction or other encumbrance.
"Loss" means any and all damages, fines,
penalties, deficiencies, losses and expenses (including without
limitation interest, court costs, reasonable fees of attorneys,
accountants and other experts or other reasonable expenses of
litigation or other proceedings or of any claim, default or assessment)
and any amounts incurred in mitigation of the foregoing.
"Order" means any writ, judgment, decree,
injunction or similar order of any Governmental or Regulatory
Authority (in each such case whether preliminary or final).
"Permits" means permits, licenses and
governmental authorizations, registrations and approvals.
"Permitted Liens" has the meaning ascribed to
it in Section 2.10.
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"Person" means any natural person, corporation,
general partnership, limited partnership, limited liability company
proprietorship, other business organization, trust, union, association
or Governmental or Regulatory Authority.
"Petroleum Products" shall mean gasoline,
diesel fuel, motor oil, waste or used oil, heating oil, kerosene and
other petroleum products.
"Purchase Price" has the meaning ascribed to
it in Section 1.3.
"Purchaser" has the meaning ascribed to it
in the forepart of this Agreement.
"Representatives" has the meaning ascribed
to it in Section 4.2.
"Seller" has the meaning ascribed to it in
the forepart of this Agreement.
"Subsidiary" means any corporation or limited
liability company in which Seller or Purchaser directly or indirectly
through subsidiaries or otherwise, beneficially owns 50% or more of
the outstanding equity interests or other interests having the right
to elect directors or managers or which Seller or Purchaser, directly
or indirectly, otherwise controls or has the right to control, and
each partnership, joint venture or other entity which is not a
corporation or limited liability company in which Seller or Purchaser
has an interest.
"Tax Return" means any return, declaration,
report, claim for refund, or information return or statement relating
to taxes, including any schedule or attachment thereto, and including
any amendment thereof.
"Tax" means any federal, state, local or
foreign income, capital gains, profits, gross receipts, payroll,
capital stock, franchise, employment, withholding, social security,
unemployment, disability, real property, personal property, stamp,
excise, occupation, sales, use, transfer, mining, value-added,
investment credit recapture, alternative or add-on minimum,
environmental, estimated or other taxes duties or assessments of any
kind, including interest, penalty and additions imposed with respect
to such amounts.
(b) Unless the context of this Agreement
otherwise requires, (i) words of any gender include each other gender;
(ii) words using the singular or plural number also include the plural
or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement;
(iv) the terms "Article" or "Section" refer to the specified Article or
Section of this Agreement; and (v) the phrase "ordinary course of
business" refers to the business of Seller. Any representation or
warranty contained herein as to the enforceability of a Contract shall
be subject to the effect of any bankruptcy, insolvency, reorganization,
moratorium or other similar law affecting the enforcement of creditors'
rights generally and to general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity
or at Law).
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the date first above written.
DIBRELL BROTHERS ZIMBABWE
(PRIVATE) LIMITED
By: /s/ Xxxxxxx Xxxxx Xxxxx
Name: Xxxxxxx Xxxxx Xxxxx
Title: Managing Director
TABEX (PRIVATE) LIMITED
By: /s/ C. Taberer
Name: C. Taberer
Title: Managing Director
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